The implications of this decision have the potential to be far reaching. The fact or character of being either male or female: persons of different sex. First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Alito wrote, "Many will applaud today's decision because they agree on policy grounds with the Court's updating of Title VII. . Clayton County Board of Commissioners, the United States Supreme Court ruled in a 6-3 decision that Title VII’s prohibition of workplace “sex” discrimination clearly encompasses discrimination based on one’s sexual orientation or transgender status because “homosexuality and transgender status are inextricably bound up with sex.” , The EEOC has used past case law and its evaluation of discrimination cases brought before it to establish that LGBT discrimination is unlawful under the context of the Civil Rights Act. See section.] . An employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Whitaker v. Kenosha Unified School Dist. 2. What does this mean for employee benefit plans? To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But no good judge would interpret the statute that way because the word “vehicle,” in its ordinary meaning, does not encompass baby strollers. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of that is at issue here. Cf. California laws prohibited individuals who engaged in “immoral conduct” (which was construed to include homosexual behavior), as well as those convicted of “sex offenses” (like sodomy), from employment as teachers. 2. V. xxvi, A black old neutral personage Of the third sex stept up. . But that is not our job. the ~, women; the sterner ~, men; is the fairest of her ~); (attrib.) It likewise proves nothing of relevance here to note that an employer cannot escape liability by showing that discrimination on a prohibited ground was not its sole motivation. 1742 Gray Propertius II. With this in mind, our task is clear. ); Mass. 111) Concerning Discrimination in Respect of Employment and Occupation, Art. 523 U.S. 75 (1998). And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity. Bostock v. Clayton County, 590 U.S. ___ (2020), was a landmark United States Supreme Court civil rights case in which the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity.. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. “[H]omosexuality and transgender status are distinct concepts from sex,” ante, at 19, and discrimination because of sexual orientation or transgender status does not inherently or necessarily constitute discrimination because of sex. While we were busy worrying about all things pandemic earlier this summer, the Supreme Court issues a major employment law decision that will impact employee benefit plans nationwide. denied, 583 U. S. ___ (2017). In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. 565 U.S. 171, 188 (2012). Blanket Consent filed by Respondent, Clayton County, Georgia. 1586 J. Hooker Hist. No one thinks that, so the employers must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status. II. The sexual urge or instinct as it manifests itself in behavior: motivated by sex. In his dissent, Alito asserted that at the time of the crafting of the Civil Rights Act in 1964 the concepts of sexual orientation and transgender would have been unknown and thus Congress's language should not be implied to cover these facets. of Oral Arg. ); Ore. Rev. . As to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? . Eskridge, Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Justices Douglas and Fortas thought that a homosexual is merely “one, who by some freak, is the product of an arrested development.”. Bostock v. Clayton County: Defining “Sex” Under Title VII Bostock v. Clayton County: Defining “Sex” Under Title VII. Stat. 562 U.S. 397 (2011), for example, the Court explained: “AT&T’s argument treats the term ‘personal privacy’ as simply the sum of its two words: the privacy of a person. That’s just the beginning of the law we would have to unravel. bostock v. clayton county decided jun 15, 2020 no. sex.” (1912) 158 The sexe of womankind of all other is most bound to have regardfull eie to mens judgements. The Court argues that sexual orientation and gender identity are “inextricably bound up with sex,” ante, at 10, and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules,” ante, at 17. b. collect. In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. Read the rest of the series about the Bostock v. Clayton County court decision. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. 523 U.S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. See post, at 9–12 (Alito, J., dissenting); post, at 12–13 (Kavanaugh, J., dissenting). By the end of the 1960s, the EEOC reversed its stance on sex-segregated job advertising. See, e.g., Note, The Legality of Homosexual Marriage, 82 Yale L. J. 449 U.S. 424, 430 (1981). In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orientation. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, (Harris Funeral Homes), in which the Sixth Circuit found Title VII also covered transgender employment discrimination, set the stage for the Supreme Court's decision in Bostock. But that much does not follow. But “[t]he statute’s focus on the individual is unambiguous,” and any individual woman might make the larger pension contributions and still die as early as a man. See Meritor Savings Bank, FSB v. Vinson, As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Ante, at 9–10. That canon tells courts to avoid construing a statute in a way that would lead to absurd consequences. [f. L sexus –ūs; partly thr. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time.” Reading Law, at 16 (emphasis added)..  Some politicians, however, were critical of the ruling, such as Missouri Senator Josh Hawley, who argued that the ruling was simply "policymaking". selection of modifiers, referents, or grammatical forms”). (ed. . In 1998, President Clinton charted a new path and signed an Executive Order prohibiting sexual orientation discrimination in federal employment. If anything, the employers’ new framing may only add new problems. BOSTOCK V.CLAYTON COUNTY (DO NOT DELETE) 2/24/2020 10:09 AM 60 DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY SIDEBAR [VOL. of Water and Power v. Manhart, 5, §4572(1)(A) (2013) (prohibiting discrimination because of “sex, sexual orientation,” etc. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. Stat. Maybe still others, occupied by other concerns, didn’t consider the issue at all. The Court observes that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc. 87Stat. Jews and Turks]? Such evidence is relevant to prove discrimination because of sex, and it may be convincing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. . 2018). That an employer discriminates intentionally against an individual only in part because of sex supplies no defense to Title VII. 20 U. S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies. What just happened? . Oncale, 523 U. S., at 79. The condition or character of being male or female; the physiological, functional, and psychological differences that distinguish the male and the female. And the meaning of “individual” was as uncontroversial in 1964 as it is today: “A particular being as distinguished from a class, species, or collection.” Webster’s New International Dictionary, at 1267. v. ix. The majority opinion deflects that critique by saying that courts should base their interpretation of statutes on the text as written, not on the legislators’ subjective intentions. Cf.  Thus the Eleventh Circuit, on the one hand, and the Second and Seventh Circuits, on the other, were divided on the question of the interpretation of Title VII. because of [some trait]” was used. The third sex: eunuchs. The absurdity canon, properly understood, is “an implementation of (rather than . Still, because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII.  Georgia was one of those states without any law protecting LGBT people from employment discrimination. The unanimity of those 30 federal judges shows that the question as a matter of law, as compared to as a matter of policy, was not deemed close. Leader McConnell and Senate Republicans must stop holding up the #EqualityAct and finally vote for progress. , Justice Brett Kavanaugh wrote a separate dissent, arguing that the Court could not add sexual orientation or gender identity to Title VII due to the separation of powers, leaving this responsibility to Congress. Cf. In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Many will no doubt believe that the Court has unilaterally rewritten American vocabulary and American law—a “statutory amendment courtesy of unelected judges.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). ; sex-cell, a reproductive cell, with either male or female function; a sperm-cell or an egg-cell. As Justice Scalia explained for the Court, “it is not our function” to “treat alike subjects that different Congresses have chosen to treat differently.” West Virginia Univ. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute sought to exclude from the workplace from those it did not, and the distinctive nature of anti-gay prejudice.” 883 F. 3d, at 162 (dissenting opinion). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. Now it’s time for the latter. . In its then-most recent Diagnostic and Statistical Manual of Mental Disorders (1952) (DSM–I), the American Psychiatric Association (APA) classified same-sex attraction as a “sexual deviation,” a particular type of “sociopathic personality disturbance,” id., at 38–39, and the next edition, issued in 1968, similarly classified homosexuality as a “sexual deviatio[n],” Diagnostic and Statistical Manual of Mental Disorders 44 (2d ed.) Simple test. Hist. Argued October 8, 2019—Decided June 15, 2020* In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. . & G.R. § 2000e (1964) protects gay and transgender workers from workplace discrimination. 124Stat. Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. Order No. The Court argues that two other decisions––Phillips v. Martin Marietta Corp., 477 U.S. 57, 64 (1986) (internal quotation marks omitted).. That is because a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase. How do we account for those who change their minds over time, after learning new facts or hearing a new argument? An employer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. In Bostock v. Clayton County, Georgia, Gerald Lynn Bostock—a gay man—worked for Clayton County, Georgia (“Clayton County”) as a Child Welfare Services Coordinator at the Juvenile Court of Clayton County. Given that many women could be hired under the policy, it’s unlikely she would say she was not hired because she was a woman. 1751 Harris Hermes Wks. 1075, codified at Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination, and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—and actually has done so since 1964, unbeknownst to everyone. 3. a The sphere of behavior dominated by the relations between male and female. . 2:18–cv–00091 (MD Ala., July 25, 2018) (change of gender on driver’s licenses); Whitaker, 858 F. 3d, at 1054 (school policy requiring students to use the bathroom that corresponds to the sex on birth certificate); Keohane v. Florida Dept. Notably, Title VII recognizes that in light of history distinctions on the basis of race are always disadvantageous, but it permits certain dis-tinctions based on sex. Manhart is instructive here. H. R. 5, 116th Cong., 1st Sess.  The combined Bostock and Altitude Express cases drew numerous amicus curiae briefs. 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Opportunity Act). So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way. Murray recognizes the U.S. Supreme Court’s landmark decision this year in Bostock v. Clayton County, which found anti-LGBTQ discrimination … While the Court’s imagined application form proves nothing, another hypothetical case offered by the Court is telling. Title Ann. 56 We have had enough of these Christians, and sure there can be no worse among the other Sex of Mankind [i.e. 2d 378 (Fla. 1970) (attorney disbarred after conviction for homosexual conduct in public bathroom). So courts should not read that specific concept into the general words “discriminate because of sex.” We cannot close our eyes to the indisputable fact that Congress—for several decades in a large number of statutes—has identified sex discrimination and sexual orientation discrimination as two distinct categories. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. How many people in 1964 could have expected that the law would turn out to protect male employees? The Court declined to interpret “facilitating” a drug distribution crime in a way that would cover purchasing drugs, because the “literal sweep of ‘facilitate’ sits uncomfortably with common usage.” Abuelhawa v. United States, To the contrary, as we have seen, the employers agree with our understanding of all the statutory language—“discriminate against any individual . See, e.g., Smith v. Liberty Mut. Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision. 883 F.3d 100 (2018). (prohibiting discrimination because of “sex[,] . 486 U.S. 592, 595, 601 (1988) (concluding that decision to fire a particular individual because he was homosexual fell within the “discretion” of the Director of Central Intelligence under the National Security Act of 1947 and thus was unreviewable under the APA). I. To increase the appeal or attractiveness of. After 1991, six other Courts of Appeals reached the issue of sexual orientation discrimination, and until 2017, every single Court of Appeals decision understood Title VII’s prohibition of “discrimination because of sex” to mean discrimination because of biological sex. Webster’s Third New International Dictionary 2081 (1966): 1sex \‘seks\ n –es often attrib [ME, fr. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. In Boutilier v. INS, §10:5–12(a) (West Supp.  Over twenty five briefs were filed to support Clayton County and Altitude Express, among them, the U.S. Department of Justice that argued that sexual orientation was not covered, but asserted that "Congress of course remains free to legislate in this area; and employers, including governmental employers, remain free to offer greater protections to their workers than Title VII requires. See the fourth definition in the American Heritage Dictionary, at 1187 (“the sexual urge or instinct as it manifests itself in behavior”), and the fourth definition in both Webster’s Second and Third (“[p]henomena of sexual instincts and their manifestations,” Webster’s New International Dictionary, at 2296 (2d ed. The answer is that this employer is discriminating on a ground that history tells us is a core form of race discrimination. A “three-pointer” could literally include a field goal in football, but in common parlance, it is a shot from behind the arc in basketball. (1677) 22 Whiles the better sex seek prey abroad, the women (therein like themselves) keep home and spin. Ibid. Sociology distinguishes the two. Houghton Monogr. 562 U.S. 562, 578 (2011). EEOC v. R.G. (prohibiting discrimination because of “sex, sexual orientation,” etc. It was not until 1980 that the APA, in DSM–III, recognized two main psychiatric diagnoses related to this condition, “Gender Identity Disorder of Childhood” and “Transsexualism” in adolescents and adults. 149 U.S. 304, 307 (1893). But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. See. Bottom line: Statutory Interpretation 101 instructs courts to follow ordinary meaning, not literal meaning, and to adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase. 400 U.S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. But it is the law. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. A prohibition on ‘race-mixing’ was . §378–2(a)(1)(A) (2018 Cum. . 1863 R. F. Burton W. Africa I. Consider an employer eager to revive the workplace gender roles of the 1950s. To paraphrase something Justice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sexual orientation or gender identity. Ante, at 5. See Milner v. Department of Navy, But none of this is the law we have. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Over thirty-six briefs were filed in support of Bostock and the estate of Zarda, including one signed by over 200 major corporations such as Amazon, the Walt Disney Company, and Coca-Cola, that asserted that it would not be "unreasonably costly or burdensome" for them to accept sexual orientation as a protected class under Title VII. 2019) (prohibiting discrimination because of “sex, . Cf. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. . 2020) (prohibiting discrimination because of “sexual orientation, .  This bill remains before a House Subcommittee. ); Iowa Code §216.6(1)(a) (2018) (prohibiting discrimination because of “sex, sexual orientation,” etc. An article summarizing the situation 15 years after Title VII became law reported that “[a]ll states have statutes that permit the revocation of teaching certificates (or credentials) for immorality, moral turpitude, or unprofessionalism,” and, the survey added, “[h]omosexuality is considered to fall within all three categories.”. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive ... A more brazen abuse of our authority to interpret statutes is hard to recall. In upholding the ruling, the Eleventh Circuit pointed to their ruling in Evans that dismissed the Supreme Court's precedent against sex discrimination set by Price Waterhouse and Oncale.. Sometimes small gestures can have unexpected consequences. For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well. 490 U.S. 228 (1989) (plurality opinion), is that discrimination because of sexual orientation or gender identity violates Title VII because it constitutes prohibited discrimination on the basis of sex stereotypes. Quality in respect of being male or female. Pol. It ties affirmations of homosexuality and transgenderism to our most basic conceptions of equality. 17–1623, 883 F.3d 100, and No. 18–107, 884 F.3d 560, affirmed. Females or males considered as a group: dormitories that house only one sex. . genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the same individual in many plants and some invertebrates and though no such distinction can be made in many lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in sexual reproduction are indistinguishable—compare heterothallic, homothallic; fertilization, meio- sis, mendel’s law; freemartin, hermaphrodite, intersex 3: the sphere of interpersonal behavior esp. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. In Phillips v. Martin Marietta Corp., Franklin, 125 Harv. 1. 3. the instinct or attraction drawing one sex toward another, or its manifestation in life and conduct. Title VII prohibits discrimination based on five specified grounds, and neither sexual orientation nor gender identity is on the list. Fr. 327, prohibited all “discrimination . That seems implausible. In a 6-3 ruling of a consolidated group of cases styled Bostock v. Clayton County, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” under Title VII of the Civil Rights Act of 1964.. as. 66Stat. ); N. H. Rev. A literalist approach to interpreting phrases disrespects ordinary meaning and deprives the citizenry of fair notice of what the law is. Is it unlawful for an employer to refuse to hire an employee with a record of sexual harassment in prior jobs? (2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. 3d 1090, 1098–1100 (SD Cal. 5)).. And that is all Title VII has ever demanded to establish liability. 1814 Scott Ld. Bostock v. Clayton County is a potentially transformative victory for LGBTQ rights. This definition should inform the meaning of “because of sex” in Title VII more generally. 2009); see also American Heritage Dictionary 1607 (5th ed. Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of biological sex. 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